Chew v. State

• Decision Date: 15 September 1993
• Citation: 121 Or.App. 474,855 P.2d 1120
• Parties: Michael Eugene CHEW, Appellant, v. STATE of Oregon, Respondent. 16-91-09661; CA A73765.
• Court: Oregon Court of Appeals

Page 1120

855 P.2d 1120

121 Or.App. 474

Michael Eugene CHEW, Appellant, v. STATE of Oregon, Respondent.

16-91-09661; CA A73765.

Court of Appeals of Oregon.

Argued and Submitted Jan. 13, 1993.

Decided July 7, 1993.

Reconsideration Denied Sept. 15, 1993.

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Youlee Yim You, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

DEITS, Presiding Judge.

Petitioner appeals from an order denying his petition for post-conviction relief, he argues that he was denied adequate assistance of trial counsel under Article I, section 11, of the Oregon Constitution and under the Sixth and Fourteenth Amendments to the United States Constitution. Petitioner claims that he received inadequate assistance of counsel because, inter alia, his attorney did not inform him that, if he pleaded guilty to DUII and subsequently drove while his driver's license was suspended, the resulting charge of driving while suspended (DWS) could be prosecuted as a felony. ORS 811.182(3)(g). We affirm.

Petitioner was charged with DUII in January, 1990. ORS 813.010. He pleaded not guilty and was approved for diversion. Thereafter, he failed to complete the diversion program and the approval was revoked. Eventually, he was taken into custody. He could not afford bail. After 11 days, his court-appointed attorney visited him in jail. According to petitioner, the conversation lasted only 5 minutes. Petitioner told his attorney that he was anxious to get out of jail because of family concerns. Petitioner claims that his attorney told him that, if he pleaded guilty, he would get out of jail the same day, but that there would be fines, probation and alcohol rehabilitation. He acknowledges that his attorney advised him that, if he pleaded guilty to the DUII charge, his license would be suspended for one year. The crux of petitioner's argument is that the attorney failed to advise him that, if he drove while his license was suspended as a result of the DUII conviction, any conviction for DWS would be a felony instead of an infraction.

Our review in post-conviction proceedings is for errors of law. ORS 138.650; ORS 138.220; Yeager v. Maass, 93 Or.App. 561, 763 P.2d 184 (1988), rev. den. 307 Or. 340, 768 P.2d 400 (1989). The issues before us are whether the facts found by the post-conviction court are supported by evidence in the record, and whether the legal conclusion drawn from those facts is correct. We are bound by the trial court's findings of fact if they are supported by evidence in the record. Brock v. Wright, 98 Or.App. 323, 326, 778 P.2d 999 (1989). If the post-conviction court fails to make express findings and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion made by the trial court. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

Petitioner is entitled to relief if he proves, by a preponderance of the evidence, that he suffered a substantial denial of a state or federal constitutional right in the proceeding below, which renders his conviction void. ORS 138.620(2); ORS 138.530(1)(a). In order to prove his allegation of inadequate assistance of trial counsel under the Oregon Constitution, petitioner must show that counsel failed to exercise professional skill and judgment, failed to diligently and conscientiously advance the defense and that the failure prejudiced his defense. Krummacher v. Gierloff, 290 Or. 867, 627 P.2d 458 (1981). To sustain his claim of ineffective counsel under the federal constitution, he must prove that, considering all the circumstances, counsel's assistance was unreasonable and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Here, the post-conviction court found that petitioner's attorney did not inform him that, because his driver's license was suspended on the basis of a DUII conviction, if he drove while suspended, any DWS charge could be prosecuted as a felony. The post-conviction court concluded, however, that counsel's failure to provide him with that information did not constitute inadequate assistance. We agree. Petitioner's counsel was not constitutionally inadequate in failing to inform him of collateral consequences of a guilty plea before petitioner decided to plead guilty. To hold otherwise would require that attorneys predict their client's future criminal activities and inform them of the potential consequences of such activity. Federal courts have held that, under the United States Constitution, attorneys are not required to inform clients of the collateral consequences of a guilty plea. See Lewis v. U.S., 902 F.2d 576 (7th Cir.), cert. den. 498 U.S. 875, 111 S.Ct. 202, 112 L.Ed.2d 163 (1990); Torrey v. Estelle, 842 F.2d 234 (9th Cir.1988). The same is true under Article I, section 11, of the Oregon Constitution. Neither the state constitution nor the federal constitution required petitioner's attorney to inform him of the collateral consequences of his plea.

Petitioner also argues that his trial counsel was inadequate because counsel did not inform him of the possibility of reinstating his diversion, failed to discuss with him the merits of his DUII case, and did not attempt to reduce his bail. However, there is evidence in the record from which the post-conviction court could have determined that petitioner's allegations were false. For instance, petitioner's attorney said that he discussed the facts of the DUII case with petitioner, that he read the police reports and told

"[petitioner] this is where we stand. I do it as a matter of course. I don't remember exactly what was said. The best thing on [petitioner's] case was the breathalizer was .06."

The attorney said that he thought petitioner had decided to plead guilty to DUII, even though his blood alcohol level was .06, because he wanted to get out of jail. He said that he would have been happy to try the case, because he would have received more fees. He also stated that he could not get bail reduced because petitioner was from out of town, and that he had explained that to petitioner. He could not recall if he talked with petitioner about reinstating him into the diversion program, but he stated that usually the court would not reinstate diversion under these circumstances.

From the evidence presented, the trial court could have found that the attorney discussed the merits of petitioner's DUII case with him, that he discussed the improbability of getting his bail reduced and that he did not believe that petitioner's diversion could be reinstated. Adequate assistance of counsel requires that counsel inform

"the defendant, in a manner and to the extent appropriate to the circumstances and to the defendant's level of understanding, of the existence and consequences of nontactical choices which are the defendant's to make, so as to assure that the defendant makes such choices intelligently. This function of counsel is particularly important when a defendant is called upon to waive fundamental rights, as by a guilty plea or waiver of jury trial." Krummacher v. Gierloff, supra, 290 Or. at 874, 627 P.2d 458.

Here, it is undisputed that petitioner's attorney advised him that a plea of guilty would result in the suspension of his driver's license for one year, the requirement that he attend an alcohol rehabilitation program, imposition of a minimum fine of $366 with time to make payments, credit for time served and an order to pay past fines totalling $467, to be paid within one year. Under the particular circumstances, the attorney properly exercised his professional skill and judgment and his efforts were not inadequate. The post-conviction court correctly determined that petitioner received adequate assistance of counsel under both the state and federal constitutions. See Krummacher v. Gierloff, supra; Strickland v. Washington, supra.

Even if we were to conclude that petitioner did not receive adequate assistance of counsel, that conclusion would not automatically render petitioner's guilty plea void. Petitioner must prove by a preponderance of the evidence that he would not have pleaded guilty if his attorney had properly advised him. See Moen v. Peterson, 312 Or. 503, 824 P.2d 404 (1991). In this case, petitioner stated that he would not have pleaded guilty if his attorney had told him that a subsequent DWS charge could be prosecuted as a felony. However, there was evidence that petitioner's primary motivation in pleading guilty was to get out of jail in order to provide for his family. Petitioner testified:

"Q Did you talk to [your attorney] about your status of being in custody?

"A I--briefly what I told him was that I needed to get out of jail because my--my family didn't have any food to eat. They had about $40 when I was taken into custody, and this was 11 days later. So--

" * * * * *

"Q What effect did this custody status have on your decision to go ahead and plead guilty?

"A Well, I had a responsibility to take care of my family, and if I had--I had to do something for them. I couldn't have them sitting out there going hungry. So, you know--and I was a newlywed."

Additionally, petitioner continued to drive while suspended even after he knew he could be prosecuted for a felony.

That evidence supports the finding, implicit in the trial court's order, that petitioner's...